Amoi v Sale [2024] SBHC 92; HCSI-CC 14 of 2024 (5 September 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Amoi v Sale
Citation:
Date of decision:	5 September 2024
Parties:	Chachabule Amoi v Danny Sale
Date of hearing:	22 August 2024
Court file number(s):	14 of 2024
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Aulanga; PJ
On appeal from:
Order:	1) Summary Judgment is granted to the Claimant for the reliefs sought in the claim. 2) Order that the Defendant trespassed into Fixed Term Estates in parcel numbers 192-004-833, 192-004-834 and 192-004-835 situated at Lunga in East Honiara. 3) Damages for trespass into those parcels of lands to be assessed, if not agreed. 4) The Defendant is ordered to remove all his personal belongings including but not limited to huts, market stalls, structures built on those lands and to cease any work undertaken on those lands forthwith. 5) A permanent injunction restraining the Defendant, his agents, servants and invitees from entering, occupying or undertaking market vendor activities or any unauthorised activities whatsoever on the Fixed Term Estates in parcel numbers 192-004-833, 192-004-834 and 192-004-835. 6) The Defendant, his agents, servants and invitees to evict from those registered parcels of land forthwith. 7) Cost of this hearing to be paid by the Defendant on standard basis, to be taxed if not agreed.
Representation:	Mr. P. Teddy for the Claimant Mr. B. Etomea for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act S 229, Solomon Islands Courts( Civil Procedure) Rule 2007, r9.57, r9.62
Cases cited:	Natei v HHD Development Ltd [ 2023] SBCA 25, Poso v Kuvia [2014] SBHC 98, Hatanga Ltd v Hanikouna [2024] SBHC 29, Tohina v Attorney-General [2004] SBHC 113,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 14 of 2024

BETWEEN

CHACHABULE AMOI
(Registered owner of the Fixed Term Estates in parcel numbers 192-004-833, 192-004-834 and 192-004-835 situated in Lunga, East Honiara)
Claimant

AND:

DANNY SALE
Defendant

Date of Hearing: 22 August 2024
Date of Ruling 5 September 2024

Mr. P. Teddy for the Claimant
Mr. B. Etomea for the Defendant

RULING ON APPLICATION FOR SUMMARY JUDGMENT

AULANGA PJ

1. The Claimant applies for summary judgment, seeking reliefs in the Category A claim to be granted summarily against the Defendant, and for cost.
2. The Claimant is the registered proprietor of three parcels of land in Fixed Term Estate parcel numbers 192-004-833, 192-004-834 and 192-004-835. They all located near the Lunga Bridge in East Honiara.
3. The Defendant did not plead any defence of fraud and or mistake for rectification of title under section 229 of the Land and Titles Act to challenge the registration and ownership of these parcels of land.
4. It is not in dispute that the Defendant had been occupying the parcels of land and asserts, amongst others, that the Claimant’s three blocks of land had encroached or overlapped into their customary land on which he is currently occupying. He further avers that the boundary between the registered lands and customary land is still in dispute and therefore raises a triable issue that needs to be determined at trial. That reliance was placed on his sworn statement filed on August 9, 2024.
5. In this application, the only issue for me to decide is whether summary judgment should be granted for this proceeding.

Whether the defence raises triable issues

6. Rule 9.57 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR 2007) is the applicable law for it allows the Claimant to apply for summary judgment if the Claimant believes the defence has no prospect of succeeding at trial. In Natei v HHD Development Ltd [2023] SBCA 25, the Court of Appeal stated at paragraph 17 that “An application for summary judgment is premised on the submission that there is no triable or arguable issue that has been raised in the defence to go to trial. In other words, that the defendant does not have any real prospect of defending the claim”. Rule 9.62 of the CPR 2007 gives the right to a party wishing to oppose the application to set out the reasons why the defence is considered to be meritorious and has a real prospect of succeeding at the trial.
7. In the defence filed on March 4, 2024, the Defendant made certain admissions that he occupied the land that covered the three registered lands for two principal reasons. First, by relying on the Townsville Peace Agreement (TPA), asserting that the portion of land that included the Claimant’s registered lands is a customary land located under a high-water mark. Hence, it is a customary land that should be returned to his Cha-cha clan as the customary landowners. Second, his occupation of the land was upon the permission from the Cha-cha clan. Implicitly, this should take precedence over the Claimant’s indefeasibility title of the three blocks of land.
8. There is no issue of boundary dispute raised in the defence.
9. Upon perusal of the defence, in fact the Defendant conceded that he was occupying those parcels of land. This was pleaded at paragraphs 3 (b) and 6 of the defence on the basis of his Cha-cha clan asserted customary ownership of the land that covers the registered lands. This admission was further corroborated in the Survey Report from GEOTECH POSITIONING SOLUTIONS LTD, at paragraph 8, which states “From the customary boundary demarcation survey carried out, it is confirmed that the three legally registered lands namely LOT 1660, LOT 1661 and LOT 1662 are within the customary demarcated boundary. The three LOTS have no development activities from the said legal owner except for the market stalls which is owned by the said customary owner” (underlined mine). Based on the defence and the Survey Report, in my view, the issue of the boundary dispute between the registered lands and the purported customary land is not the issue since it is incompatible or inconsistent with the defence. The correct issue for this Court to consider based on the materials is, whether a defence relying on the provisions of the TPA, as basis to occupy the registered lands of another, is a valid defence recognised in law.

Decision of the Court

10. The law set out in Poso v Kuvia [2014] SBHC 98 is clear that once a customary land is registered, it loses its customary status and becomes a registered land. As such, any dispute arising to its ownership has to be determined according to the registration of the land, and not by custom. Upon registration, the registered owner acquires good title to the land unless it is defeated by fraud or mistake. This is based on the Torren land tenure system that is adopted in our Land and Titles Act.
11. In the present case, in order to defeat or dislodge the indefeasibility title of the Claimant to the parcels of land in issue, the Defendant has to raise fraud and or mistake in defence for the rectification of title of the three parcels of land. I have looked at the defence and unfortunately, there is no defence of fraud and or mistake. Such omission is unfortunately fatal to the merit of the defence.
12. Next is the reliance on the TPA as the basis to occupy the registered lands to escape liability.
13. The law of this jurisdiction is crystal clear that a defence relying on the terms of the TPA or any international treaty for that matter, does not amount to a valid defence to occupy a registered land. For example, in Hatanga Ltd v Hanikouna [2024] SBHC 29, the Court dealt with a claim involving a registered land where a defence relying on the TPA was raised as the basis for occupying the property and denying of liability. The Claimant applied for default judgment and was opposed by the Defendant by relying on a draft defence that he perceived as meritorious which would require the trial. Lawry J, when granting the default judgment rightly expressed at paragraph 7 in relation to the TPA:
    • “The Defendant then relies on provisions of the Townsville Peace Agreement. That is not an agreement that has a status of law nor it is pleaded that the Claimant is a party to that agreement. This Court is required to adjudicate between the parties in accordance with the law.”
14. The Hatanga case cited above in fact followed the same conclusion reached in another High Court consolidated case of Tohina v Attorney General HCSI CC 236/2003, Saenumua v Attorney General HCSI CC 275/2003, Chan v Attorney General HCSI CC 237/2003 and Lanetelia v Attorney General HCSI CC 055/2004 where Brown J, held that any reliance on the TPA without its domestication into the laws of Solomon Islands does not afford a party a course of action to commence litigation in Court.
15. Unless the TPA relied on by the Defendant is codified into our local laws by the parliament, or the Defendant pleads the defence of fraud and or mistake under section 229 of the Land and Titles Act for rectification of title, the defence does not amount to a valid defence which could survive the threshold test in summary judgment. Having settled on those findings, I hold that the defence relied on by the Defendant sets out nothing that could be said to amount to defence to the claim.
16. I have considered the materials and arguments from both sides. Based on the above reasons, it is my view that the issue of whether summary judgment should be granted for this proceeding is answered in favour of the Claimant. This is for all the more obvious reason that it is futile and a pointless exercise to allow the case to proceed to trial for further investigation when the defence in this proceeding does not amount to a defence to the claim. The defect uncovered is fatal and uncurable even if leave for amendment of the defence is granted.
17. As the materials disclosed, the Defendant conceded to occupying the registered lands. His case essentially is on the reliance of the TPA as the basis to legitimise his occupation and usage of the registered lands, which has found to be legally flawed and erroneous.
18. This is not a case regarding the boundary dispute between the registered lands and the customary land of Cha-cha clan, but rather a case on whether by relying on the TPA could legitimise the Defendant’s occupation on the Claimant’s registered lands. As firmly held by this Court, the law founded on the Torren system recognised in the Land and Titles Act does not recognise or legitimise such occupation and for this reason, the defence is inherently untenable or unmeritorious to have the case progressed to the trial for determination.
19. This is an appropriate case that I will grant summary judgment in the terms sought in the claim. The Defendant to pay cost of this application on standard basis, to be taxed if not agreed.

Orders of the Court

1. Summary Judgment is granted to the Claimant for the reliefs sought in the claim.
2. Order that the Defendant trespassed into Fixed Term Estates in parcel numbers 192-004-833, 192-004-834 and 192-004-835 situated at Lunga in East Honiara.
3. Damages for trespass into those parcels of lands to be assessed, if not agreed.
4. The Defendant is ordered to remove all his personal belongings including but not limited to huts, market stalls, structures built on those lands and to cease any work undertaken on those lands forthwith.
5. A permanent injunction restraining the Defendant, his agents, servants and invitees from entering, occupying or undertaking market vendor activities or any unauthorised activities whatsoever on the Fixed Term Estates in parcel numbers 192-004-833, 192-004-834 and 192-004-835.
6. The Defendant, his agents, servants and invitees to evict from those registered parcels of land forthwith.
7. Cost of this hearing to be paid by the Defendant on standard basis, to be taxed if not agreed.

THE COURT
Augustine S. Aulanga
PUISNE JUDGE